Is a Nun an Employee? Can a Nun Sue to Recover Damages for Unpaid Work Performed in a Monastery? (Professor Doorey)

NOTE: This article is taken from Professor Doorey’s blog, Law of Work. Professor Doorey is an award winning teacher and Associate Professor of Work Law at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law, and sits on the Advisory Board of the Osgoode Certificate program in Labour Law.

Professor Doorey.
Professor Doorey.
Among  the first things we consider in my Employment Law course is “what is an employee” and when is an employment contract created?

When I ask someone to build a deck in my backyard, am I entering into an employment contract with him, or some other form of contract?  Is an intern an employee?  Can the intern sue a business that took her on to do work?

Whether a contract is created, and if so, whether that contract is an ‘employment’ contract matter greatly in our legal system.  A worker can only sue for damages if there was a legally enforceable contract entered into.  They can only make claims for employment regulation benefits if they became an ‘employee’ as defined by our employment laws.

So I was interested in an odd little decision from Ontario released last month dealing with the question of whether a nun residing and performing work in a monastery can sue to recover monies for work she performed while residing at the monastery. The case is called Ivantchenko v. The Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery.

Here is a Toronto Star piece discussing the case.

The nun (Ivantchenko) filed a lawsuit alleging constructive dismissal (among other claims, including a variety of torts).   She is seeking notice of termination (back wages), among other remedies.  Only an employee can be constructively dismissed.  While residing as a nun in the monastery, she performed a variety of tasks including sewing.

Chapel entrance at St. Kosmas Monastery, Canada.
Chapel entrance at St. Kosmas Monastery, Canada.

This was a decision on a summary judgment motion brought by the Defendants.  That is, the Defendants argued that the court should dismiss the lawsuit without a trial because the nun is not an employee and no contract was entered into.  They argued that:

Ivantchenko was not hired, or employed, by the Monastery. She entered into the Monastery voluntarily with the awareness that she would not receive any pay or income, or salary of any sort, and would be in the service of God and her fellow sisters. At no point in the 14 years that Ivantchenko was residing at the Monastery did she ask for pay of any sort, or complain at any time that she was not receiving pay.

That claim sounds like something employers say when they try to explain why workers they call “unpaid interns” are not employees, and therefore not entitled to minimum wage and other employment-related benefits (other than the God part, that is).  Often that argument fails in the case of interns, as I have noted before, because courts look past how the parties characterize the relationship and apply a series of tests to determine if a worker looks more like an employee, or more like something else (like a person receiving an education, or an independent contractor).

Should the situation be different for nuns?

The court here refuses to grant the summary dismissal.  It rules that there was not enough evidence presented to establish the nature of the relationship, and therefore the facts need to be sorted out at trial.  However, the Judge does hint that he is troubled by the case,  because courts are usually ill-equipped to interpret religious rules and culture, and therefore the risk of a court imposing an inappropriate rule on a religious organization is high.  He says that courts should be very careful in wading into internal religious disputes.

St Kosmas Backview

On the other hand, the courts cannot stand back and allow violations of civil, legal rights to be trampled upon under the guise of religious freedom.  Should every person who performs work inside a monastery be outside the boundaries of employment law, or just some? Should a religious organization be permitted discriminate against people who do not share their faith? Where to draw the line between religious freedom and secular legal rights is a controversial and difficult one.  However, someone needs to answer these sorts of questions.

What do you think?  Should the nun be entitled to employment-related benefits and contractual rights?

Or did she forfeit those rights when she walked into the Monastery?

A requirement of legally enforceable contract is ‘the intention to create legal relations’.  Do you think that the monastery intended to enter into such a contract with the nun?

Two Responses to Can a Nun Sue to Recover Damages for Unpaid Work Performed in a Monastery?

  1. Bob Barnetson Reply

    January 4, 2012 at 1:07 pm

    This isn’t a legal argument, simply an observation: religious orders accorded special treatment have a history of abusing and exploiting the vulnerable. This seems to augur against legal exceptions for religious orders.

    Presumably there was some set of mutual obligations entered into when she entered the relationship with her order. If these obligations weren’t written down, shouldn’t we fall back upon whatever common law doctrines appear most appropriate (and these might or might not employment-related)?

    I’m certainly prepared to entertain arguments about instances where religious beliefs have some legitimate bearing upon employment (e.g., the exception to union security clauses contained in most labour statutes for honestly held religious beliefs), but I’m also heartened the court decided to hear the nun’s case and decide it on its merits.

    2. Ioannis M. Reply

    June 15, 2015 at 12:30 pm

    I will get to the legal aspects near the end of my comment. The first few paragraphs are just some background clarification.

    The 18+ monasteries under Geronda Ephraim’s direction in North America are continually accused as mind-control cults. This is essentially because the most important monastic “virtue” that is emphasized and expected is complete, blind obedience. As Geronda Ephraim teaches, “A disicple should say to oneself, whatever the Elder believes, thinks and feels, I believe, think and feel.” This is very dangerous because the monastics start reprogramming themselves to adapt to this mindset, and begin doing things that go against their conscience, all in the spirit of blind obedience. Of course, there is also a clause in the monastic texts, “It is better to sadden God than your Elder because if you sadden God, your Elder can propitiate for you, but if you sadden your Elder, who will pray for you?”

    With the above in mind, one can see how easy it is for an Elder or Eldress to manipulate their monastics into anything, they have the fear of a) saddening their superior=abandonment of God and grace, b) disobedience=death (i.e. if they die in disobedience they go to hell) and c)they are constantly reminded day in and day out about obedience/disobedience and the day of their death.

    A typical monastery schedule allows 6 1/2 to 7 1/2 hours of sleep daily which is broken up into two portions: 4-5 hours sleep before waking up for an all night vigil (beginning anywhere between midnight to 2am) and then the remaining time is allowed after the vigil. Depending on the monastery, breakfast is eaten before or after the morning sleep (a full stomach sometimes hinders sleep so monastics will eat lightly or not at all). Then a full day of work, which in some cases resembles slave labor, begins. Whatever a monastic is instructed to do, they are expected to do not only without questioning, but also without murmuring or begrudgingly. Work is also usually combined with a superior or older monastic yelling at or insulting the monastic (this is said to be for the benefit of their soul so that they can acquire the virtue of humility). As well as trying to ceaselessly recite the Jesus prayer either verbally or noetically, the monastic also has to include reflections on their death and various forms of self-reproach, i.e. “I’m useless, I’m garbage, I’m worthless, my work isn’t good, I’m nothing, etc.” The superiors will also yell this at the monastic periodically, either daily or throughout the weekly cycle, so they don’t fall into pride.

    So, in essence, eastern orthodox monasticism is a form of slavery which the candidate knowingly enrolls themselves (the catch is, they do not actually understand the depth and the magnitude of this commitment). As a layperson, the monk read the monastic texts, lives of moanstic saints, had conversations with monastics who were grooming them with counsels and stories tailor-made for them, and perhaps even helped out at monasteries during pilgrimages. However, this is all theoretical knowledge without practical experience. Nobody witnesses the ins and outs, or the skeletons in the closet, until they put on the black. Despite all the scandals and hypocrisies one sees behind closed doors, they are suppose to repeatedly justify them with positive thoughts. One saint writes, “Even if you see your elder fall into fornication, do not judge him.” One is suppose to believe that Christ speaks through the Elder, even if they are the most sinful people.

    The Ladder of Divine Ascent—also referred to as “The Monastic Bible”—states: “You who are therefore trying to lay your own burden on Another’s shoulders [i.e. via submitting in blind obedience to an Elder], you who are hastening to sign a pledge that you are voluntarily surrendering yourself to slavery” (Step 4:5). At the end of the book, St. John Climacus writes his own Beautitudes for monastics: “Blessed is he who is as zealous with true zeal as a well-disposed slave towards his master” (Step 30:11).

    Thus, a layperson entering the monastic life knows beforehand that they are making a commitment that will not be paid here on earth, they are doing everything with a hope–not a guarantee–that they will be rewarded in the next life. Geronda Ephraim teaches that not many monastics are saved because of their negligence and disobedience. So it is a life filled with anxiety and constantly reminding oneself that they are probably going to hell because they are not good enough.

    I think Sister Veronica would’ve had a better angle if she sued primarily for emotional and psychological abuse and the damages she suffered from it. Proving it would be hard because Gerondissa Alexia would’ve instructed her nuns to lie (in monasticism, there is no sin in obedience except disobedience, so the nuns technically would not be breaking any commandments if they obeyed).

    Over 40 monks and nuns have left Geronda Ephraim’s monasteries since they started here in 1989. Some of these individuals have been monastics for over 20 years. The majority left with psychological and emotional trauma. However, no one talks out of fear of being “punished by God.” The monastics have heard numerous stories about people who spoke out against Geronda Ephraim being “chastised” with terminal illnesses, lost of a child, even death, thus there is a terror about speaking out against the abuses that go on in the monasteries. Only a few websites have:

    https://scottnevinssuicide.wordpress.com/

    http://stnektariosmonastery.tumblr.com/

    http://gerondaephraim.tripod.com/backup1.html

    – See more at: http://lawofwork.ca/?p=4399#sthash.nnSvj8Kj.kLhTyat1.dpuf

– See more at: http://lawofwork.ca/?p=4399#sthash.nnSvj8Kj.dpuf

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